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2010 DIGILAW 262 (ORI)

Gangadhara Samal v. State of Orissa

2010-04-09

B.K.NAYAK

body2010
JUDGMENT B.K. NAYAK, J. — This is an informant’s revision against the judgment of acquittal dated 30.07.2005 passed by the C.J.M.-cum-Asst. Sessions Judge, Jagatsinghpur in S.T. Case No.372/43 of 2001. 2. The accused-opposite party Nos.2 to 24 and deceased-opposite party No.25 were charged under Section 395 of the I.P.C. The prosecution case is that on 20.01.1999 at 4.00 P.M. while the petitioner-informant, who is a lawyer in Kujanga Court, returning from the Court was obstructed by accused-Purastam Mohapatra, Pramod Lenka and Pabitra Lenka, who threatened to kill and chased him. The informant took shelter in village-Dardia in his sister’s house and sent his brother-in-law Ramesh Chandra Choudhury (P.W.9) and nephew-Lambodhar Choudhury (P.W.3) to his house. At 10.00 P.M., the informant returned to his house when all the accused persons came and tied him, his father and other family members and removed some building materials like bricks, sand, chips and iron rod which had been stacked in front of his house. The accused persons also removed cash, gold ornaments and some rice bags from the house of the informant. The informant lodged F.I.R. at 4.00 P.M. on the next day, i.e., 21.01.1999 whereupon the police registered the case under Sections 341/342/379/380/506/34 of the I.P.C. After completion of investi¬gation, the Investigating Officer submitted final report, which was protested to by the informant by filing a complaint where after the learned Judicial Magistrate enquired into the matter and took cognizance of the offence under Sections 395 of the I.P.C. and committed the case to the Court of Sessions for trial. 3. The plea of the accused persons was denial of the occurrence as alleged by the prosecution. Their further plea is that the villagers had decided to construct a building for the village Goddess, Barunei and, therefore, paid a cash of Rs.20,000/- on 15.4.1998 from the village fund to the informant, to purchase building materials at a cheaper rate. The informant after purchasing had stacked the building materials in front of his house which the villagers collected on the request of the father of the informant. 4. In course of the trial the prosecution examined 11 witnesses including the informant, who was examined as P.W.10, P.W.1 is the father of the informant. P.W.3 is the maternal nephew and P.Ws.4 and 9 are two brothers-in-law of the informant. P.Ws.2, 5, 6 and 8 are some lawyers of Kujanga Bar Association. 4. In course of the trial the prosecution examined 11 witnesses including the informant, who was examined as P.W.10, P.W.1 is the father of the informant. P.W.3 is the maternal nephew and P.Ws.4 and 9 are two brothers-in-law of the informant. P.Ws.2, 5, 6 and 8 are some lawyers of Kujanga Bar Association. P.W.7 is the cousin sister of the informant and P.W.11 is the A.S.I. of Police, who investigated into the case on the basis of the F.I.R. The defence also examined four witnesses. 5. In assailing the impugned judgment, the learned counsel for the petitioner submits that the trial Court has not assessed the evidence on its proper perspective and has erroneously passed the order of acquittal. It is contended that there is total non-application of mind by the trial Court to the evidence of the prosecution witnesses and more emphasis had been given to minor discrepancies appearing in their evidence. It is further stated that the Court below having found that building materials, which were removed, were seized, it has erroneously accepted the de¬fence plea that the building materials were purchased by the informant on behalf of the villagers for the purpose of construc¬tion of building for the village-Goddess Barunei. 6. The scope of revision against an order of acquittal is very limited. It has been held by the Apex Court in the case of Akalu Ahir v. Ramdeo Ram; AIR 1973 SC 2145 that on revision by a private complainant, the High Court is not entitled to reappraise the evidence for itself as if it is acting as a Court of appeal. It is trite law that revisional jurisdiction should not be exercised by the High Court for directing retrial of the case, unless, there is flagrant miscarriage of justice resulting from want of jurisdiction of the trial Court to try the case, or where evidence sought to be produced by the prosecution was wrongly shut out, or where the Court below wrongly held the evidence to be inadmissible, or where material evidence was over looked. Reference in this regard can be made to the judgment of the Apex Court in the case of K. Chinnaswamy Reddy v. State of Andra Pradesh and another, AIR 1962 SC 1788 and the decision of this Court in the case of Surendra Barik v. Gurubari Nayak and other; (1990) 3 OCR 625 . 7. Reference in this regard can be made to the judgment of the Apex Court in the case of K. Chinnaswamy Reddy v. State of Andra Pradesh and another, AIR 1962 SC 1788 and the decision of this Court in the case of Surendra Barik v. Gurubari Nayak and other; (1990) 3 OCR 625 . 7. In the instant case, the learned trial Court has recorded the evidence and participated in trial through out. It has appreciated the evidence carefully as reflected in the judgment. According to the learned trial Court, the prosecution originated in falsehood where the informant (P.W.10) claimed to be an eye witness to the occurrence that took place at about 10.00 P.M. in the night, though the evidence of his father and other related witnesses said to be present in the house where the offence took place have in their evidence disowned the presence of P.W.1 in the house at the time of occurrence. P.W.1, who is the father of P.W.10, has stated in his evidence that P.W.10 was not present and returned to the house early in the next morning at about 3.00 A.M. The trial Court has also taken into account material discrepancies and contradictions in the evidence of prosecution witnesses, who sought to exaggerate and embellish the prosecution story. Removal of cash, gold ornaments etc from the Almirah inside the house is also found to be improbable as be¬cause there is evidence that there was no electric light in the house and merely a lantern was burning at one place, and further that on the following day though the informant disclosed before the President of the Bar Association and some of his lawyer friends that there was some dispute with the villagers, he never intimated about the commission of dacoity in respect of cash, gold jewellery, law books etc. Defence plea is found to be proba¬ble on the basis of evidence. The trial Court on appreciation of evidence has taken quite a reasonable view and such appreciation cannot be said to be wholly perverse. The learned counsel for the petitioner has not been able to show that either any material evidence has not been considered or any such evidence has been rejected by the trial Court an untenable grounds causing miscar¬riage of justice. The learned counsel for the petitioner has not been able to show that either any material evidence has not been considered or any such evidence has been rejected by the trial Court an untenable grounds causing miscar¬riage of justice. Even where two views are possible, the view taken by the trial Court should not be lightly interfered with or substituted by the appellate or revisional Court by re-appreciating the evidence. There is also no procedural defect or any other legal infirmity. In the circumstances, I find no merit in this revision, which is accordingly dismissed. Revision dismissed.